Sarah A. Walker v. Lucy Renfro, 26 Tex. 142

Wheeler, C. J. The deeds of the 6th of January, 1853, were executed and delivered to the parties respectively. The effect undoubtedly was to vest the title in accordance with the terms of the deeds. That effect, it is conceived, could not be obviated by the parol contemporaneous agreement that they should not be probated for registry until Renfro should perfect the title to the Sigler labor. The parties may not have been aware that such was the effect of the delivery.

How that was, we are not certainly informed; but however it may have been, their not understanding its effect, Could not change the legal consequence of the act. Where a deed has thus been delivered to the grantee, it is questionable whether in the absence of fraud, parol evidence can be heard to prove that it was not to take effect according to its import. It may be shown that a deed was never duly delivered; or was delivered as an escrow; or' to take effect only on a contingency which has not happened; or that the grantee obtained it fraudulently, or in an improper manner, &c.

This species of evidence has not been considered as coming within the rule which rejects parol proof when offered to contradict a deed. (Roberts v. Jackson, 1 Wend., 484.) But here the deed was not delivered to a third person as an escrow; .it is not pretended that it was not duly delivered and accepted by the grantee, completely and regularly executed. In Ward v.

Lewis, (4 Pick., 518, 520,) it was held that, where a deed with the evidence of complete and unqualified execution on its face, has been signed, sealed and delivered to the party, parol evidence of an agreement or understanding that it should not take effect until a certain event, is inadmissible as going to vary the terms of the deed and make that conditional which appeared to be absolute.

But if such evidence can be received where the deed is thus delivered to the party, and not to a third person, the evidence in this case is not deemed to prove that it was the understanding of the parties that the deed should not take effect at the time of delivery. Such an intention may, perhaps, be inferred; but it is an inference which the court would not be disposed to adopt where there is doubt as to the admissibility of such an inference upon legal grounds, and the evidence is not express to the point.

Although the transaction was in effect an exchange of lands, it Was not a technical exchange, and it seems to be the doctrine of the adjudged cases that the effect of such an exchange—that is, that if one party is evicted from the - land conveyed to him, he may re-enter upon his own land which he had given in exchange— does not attach to a case like the present. (2 Hilliard on Real Property, 380; Id., 314, 315; Harland v. Eastland, Hardin, (Ky.) R., 590; Cass v. Thompson, 1 N. H., 65.) Both deeds contained an express covenant of warranty of. title. That of Mrs.

Walker vested in Renfro the title to the land in controversy. The consequence is, that his alienee, the plaintiff, can maintain this action, and the right of action is not defeated by the failure of title to the labor. The defendant has her remedy for such failure of title upon the warranty in her deed. She has not sought it in her defence to this action, and must therefore be left to pursue it in another, should she think proper. We need not inquire ^vrhat would have been the effect of the deed, had it contained ho warranty. It is unnecessary to revise the rulings of the court upon instructions to the jury.

Since the defence to the action cannot be maintained, these rulings are immaterial. The judgment is affirmed. Judgment affirmed.